The Constitutional Catch-22 of Florida's Capital Sentencing Scheme

During argument in Hurst v. Florida, the United States Supreme Court grappled with the constitutionality of the Florida death penalty statute. In doing so, it revealed what many of us have long argued—that the Florida capital scheme is spectacularly, flamboyantly unconstitutional and that Florida seems not much to care. As former United States Solicitor General Seth Waxman argued to the Court on Monday on behalf of condemned inmate Timothy Lee Hurst, the problem lies in the unique structure of Florida’s death penalty statute. Like most states, Florida requires that the jury find an aggravating factor before a defendant can be sentenced to death. The proven aggravating factor or factors are then weighed against any mitigating evidence to arrive at the appropriate sentence for each capital defendant. It is here, however, that Florida’s statute diverges from those of other states. Florida law instructs capital juries that their decision-making with regard to life or death is merely advisory and that the judge will have the ultimate say with regard to whether the defendant lives or dies.

This throws everything into chaos. For the Supreme Court in Ring v. Arizona held that any fact that makes a defendant eligible for death must be found by a jury and beyond a reasonable doubt. This places the State of Florida in an impossible bind. If the jury in a Florida capital case plays no actual role in determining the defendant’s punishment then the statute runs afoul of Ring by allowing fact-finding crucial to eligibility to be done by a judge. If, by contrast, the state seeks to rely on the jury’s finding to make the defendant eligible for death, then the instruction given the jurors that their findings are merely advisory runs afoul of the Supreme Court’s decision in Caldwell v. Mississippi. In that case, the Supreme Court held that the jury’s crucial role in determining sentence in capital case cannot be diminished by instructions that lead jurors to believe that the ultimate responsibility for the verdict resides elsewhere. Regardless of how it is read, therefore, there is a constitutional defect in the Florida capital statute—either the jury’s rule is crucial or it is not and either way the process is irretrievably flawed. Maybe this is why the state of Florida—at least in its briefs—rather mysteriously argued that Ring does not even apply to the Florida death penalty scheme.

But we have only begun to discuss the things wrong with the Florida death penalty statute,for the problems with the Florida statute are only compounded by the opacity of the verdict that the jury is asked to reach. A Florida capital jury is not asked to fill out special verdict forms setting forth which aggravating factors it found to be present (in fact, there is Florida case law stating that it cannot be asked to fill out such a form). Instead the jury merely reports its recommendation with regard to sentence and its numerical vote. In Hurst’s case, the jury recommended death by a bare vote of seven to five (a six-six vote would have required them to recommend a life sentence).Logically necessary to this recommendation was a determination by at least 7 of the jurors that an aggravating factor was present—without an aggravating factor proven, the defendant is ineligible to be sentenced to death. But which aggravating factor did the jury find to be proven true in this case? Here, two aggravators were alleged—that the killing occurred in the course of a robbery and that the killing was heinous or cruel. Because the Florida capital jury is a black box, however, we will never know precisely how many jurors found each aggravator to be true—in fact, it was possible that a majority, even a super-majority, of jurors voted against both aggravating factors. (Had the jury voted eight-four and nince-three against the two aggravating factors, seven of the jurors could have found at least one to be present.) Although the United States Supreme Court has held that a defendant may be convicted by a non-unanimous jury and that the government may rely on alternative theories in proving its case, the Justices nonetheless seemed concerned that Hurst could be sentenced to death based on such an opaque, confusing, and unreviewable procedure.

It would be simple enough for the Supreme Court to hold that the Florida statute violates Ring because it allows a defendant to be sentenced to death based on a judge’s determination that an aggravating factor is present. Ring was decided by a vote of seven-two and there is little reason to think that personnel changes on the court in the last thirteen years have weakened support for the decision. If anything, Justice Breyer’s dissenting opinion for himself and Justice Ginsberg in last term inGlossip v. Gross—stating his concern that the death penalty as it is now being practiced is always unconstitutional—makes clear that the left-right coalition that decided Ring is probably still in place.

But Hurst also presents the court with the opportunity to more fundamentally rethink capital punishment in the United States at this difficult time in its history. The Supreme Court has shrunk the pool of those who may be sentenced to death—excluding non-killers without sufficient mental culpability, those convicted of a crime other than murder, the developmentally disabled, juveniles, etc.—and has imposed procedural restrictions on how the decision to impose death may be made—requiring juror fact-finding, mandating the consideration of any mitigating evidence proffered by a defendant, etc. With at least two Justices moving in the direction of abolition (and Justice Sotomayor expressing her existential concerns as well) the time may be ripe for more fundamental change in how capital punishment is regulated by the Court.

As a colleague and I have written, the restriction imposed on the states by Ring is a largely illusory one. The mandate of jury decision-making applies only to fact-finding and not to moral judgments regarding just deserts. A state can likely avoidRingentirely simply by making all first degree murderers eligible for death unless the jury chooses to spare them or by leaving the selection decision—whether the defendant lives or dies—to the judge rather than the jury. So long as eligibility factors are determined by a jury and beyond a reasonable doubt, the jury’s role can be diminished in any number of ways. Against this background, the argument raised first by Justice Stevens and then later championed by Justice Breyer may be heard again: That the Eighth Amendment (not the Sixth) requires a jury to impose the law’s highest sanction.